arrest had violated freedom of navigation and manifestation enjoyed by vessels
sailing within the EZZ.
64
In a dissenting opinion, however, Judge Vladimir Golitsyn reasoned that laws and
regulations passed by the coastal state would be “meaningless if the coastal State did
not have the authority to ensure their enforcement”. As a logical consequence,
coastal states would have the right, pursuant to Art. 60 (2) UNCLOS, to enforce
domestic rules governing artificial islands, installations and structures.
65 The overall
content of the Arctic Sunrise case is rather complex and escapes the purpose of this
book. Nonetheless, it is noteworthy that, in the merits of the case, the Arbitral
Tribunal found that Russia did not have enforcement rights over the vessel, because
the country has no right to enforce violations to domestic laws beyond the 500-meter
safety zones around oil platforms, unless it had met the criteria for hot pursuit—
which the Tribunal asserted Russia did not.
66 In any case, it remains beyond doubt in
both decisions that coastal states do enjoy enforcement rights in the circumstances
provided for in the Convention.
The Arbitral Tribunal also stated that coastal states have the right to enforce
domestic laws relating to non-living resources in the EEZ, but it did not elaborate on
the extent of the right. In line with the ILC Commentaries to the 1958 CSC (or ILC
draft articles), enforcement is an integral part of sovereign rights. With regard to
enforcement rights over vessels outside of safety zones surrounding oil installations
and structures, the Convention is supposed to be applied to that area alone, not to the
whole EEZ or continental shelf. Otherwise, it would have made no sense for
UNCLOS drafters to make express references to safety zones in Art. 60 (4).
67
Note, thus, that the legal reasoning employed by the Arbitral Tribunal also applies
to the relationship between navigation freedoms and coastal states’ rights on the
continental shelf within and beyond 200 nm. Measures taken by coastal states must
be reasonable, necessary and proportionate.
68 In the Arctic Sunrise case, there was
64 PCA, The Arctic Sunrise Arbitration (The Netherlands v. Russian Federation), Award on the
Merits, 14 August 2015, para 401 (c).
65 Judge Vladimir Golitsyn, Dissenting opinion, The Arctic Sunrise case, ITLOS, para 23.
66 PCA, The Arctic Sunrise Arbitration, 2015, para 229.
67 Such was the understanding of Judges Rüdiger Wolfrum and Elsa Kelly in the Arctic Sunrise
case, to whom “as far as enforcement actions in the exclusive zone in general are concerned the
enforcement jurisdiction of the coastal State is limited if it is not legitimized by one of the
exceptions mentioned above. It is for the flag State to take the enforcement actions not entrusted
to the coastal State by the Convention on the Law of the Sea”. Para 13. Still according to the judges,
“this division of enforcement functions between the coastal State and the flag State should have
been of relevance in formulating the provisional measures since such provisional measures should
have taken into account that the Russian Federation enjoys enforcement functions in respect of the
protection of the platform within the safety zone whereas it has no such right in its exclusive
economic zone vis-à-vis the Arctic Sunrise as the facts present themselves at the moment”. See The
Arctic Sunrise Case (Kingdom of Netherlands v. Russian Federation), Provisional Measures, Order
of 22 November 2013, ITLOS Reports, Separate Opinion, Judges Rüdiger Wolfrum and Elsa Kelly,
para 14.
68 PCA, The Arctic Sunrise Arbitration, 2015, para 326.
8.2 Environmental Jurisdiction to Enforce
241
sailing within the EZZ.
64
In a dissenting opinion, however, Judge Vladimir Golitsyn reasoned that laws and
regulations passed by the coastal state would be “meaningless if the coastal State did
not have the authority to ensure their enforcement”. As a logical consequence,
coastal states would have the right, pursuant to Art. 60 (2) UNCLOS, to enforce
domestic rules governing artificial islands, installations and structures.
65 The overall
content of the Arctic Sunrise case is rather complex and escapes the purpose of this
book. Nonetheless, it is noteworthy that, in the merits of the case, the Arbitral
Tribunal found that Russia did not have enforcement rights over the vessel, because
the country has no right to enforce violations to domestic laws beyond the 500-meter
safety zones around oil platforms, unless it had met the criteria for hot pursuit—
which the Tribunal asserted Russia did not.
66 In any case, it remains beyond doubt in
both decisions that coastal states do enjoy enforcement rights in the circumstances
provided for in the Convention.
The Arbitral Tribunal also stated that coastal states have the right to enforce
domestic laws relating to non-living resources in the EEZ, but it did not elaborate on
the extent of the right. In line with the ILC Commentaries to the 1958 CSC (or ILC
draft articles), enforcement is an integral part of sovereign rights. With regard to
enforcement rights over vessels outside of safety zones surrounding oil installations
and structures, the Convention is supposed to be applied to that area alone, not to the
whole EEZ or continental shelf. Otherwise, it would have made no sense for
UNCLOS drafters to make express references to safety zones in Art. 60 (4).
67
Note, thus, that the legal reasoning employed by the Arbitral Tribunal also applies
to the relationship between navigation freedoms and coastal states’ rights on the
continental shelf within and beyond 200 nm. Measures taken by coastal states must
be reasonable, necessary and proportionate.
68 In the Arctic Sunrise case, there was
64 PCA, The Arctic Sunrise Arbitration (The Netherlands v. Russian Federation), Award on the
Merits, 14 August 2015, para 401 (c).
65 Judge Vladimir Golitsyn, Dissenting opinion, The Arctic Sunrise case, ITLOS, para 23.
66 PCA, The Arctic Sunrise Arbitration, 2015, para 229.
67 Such was the understanding of Judges Rüdiger Wolfrum and Elsa Kelly in the Arctic Sunrise
case, to whom “as far as enforcement actions in the exclusive zone in general are concerned the
enforcement jurisdiction of the coastal State is limited if it is not legitimized by one of the
exceptions mentioned above. It is for the flag State to take the enforcement actions not entrusted
to the coastal State by the Convention on the Law of the Sea”. Para 13. Still according to the judges,
“this division of enforcement functions between the coastal State and the flag State should have
been of relevance in formulating the provisional measures since such provisional measures should
have taken into account that the Russian Federation enjoys enforcement functions in respect of the
protection of the platform within the safety zone whereas it has no such right in its exclusive
economic zone vis-à-vis the Arctic Sunrise as the facts present themselves at the moment”. See The
Arctic Sunrise Case (Kingdom of Netherlands v. Russian Federation), Provisional Measures, Order
of 22 November 2013, ITLOS Reports, Separate Opinion, Judges Rüdiger Wolfrum and Elsa Kelly,
para 14.
68 PCA, The Arctic Sunrise Arbitration, 2015, para 326.
8.2 Environmental Jurisdiction to Enforce
241